Opposition leader Anwar Ibrahim's decision to testify from the dock has taken many by surprise, with some questioning the wisdom of such a move.

NONEBy testifying from the dock, Anwar (right) cannot be cross-examined by the prosecution, and he therefore does not need to be under oath - and his evidence will not be that weighty.

Mohd Saiful Bukhari Azlan, who is accusing Anwar of sodomising him, has hit out at latter for choosing this route.

"I gave a sworn statement. I was questioned by lawyers for four days. I didn't refer (to any document). The accused gave an unsworn statement, he was not cross-examined and read a 32-page text," Saiful wrote on his Twitter account yesterday.

Legal opinion on Anwar's strategy is mixed. Lawyer N Surendran, who is also a PKR vice-president, hailed the move as a last stand against conspiracy while a Malacca lawyer contends that an unsworn statement is as good as no evidence.

A criminal law expert, who did not want to be named due to the sensitive nature of the case, said that such a legal strategy was not that uncommon.

"When the defence is called, there are three choices. The accused can give a statement from the witness stand, give a statement from the dock or just remain silent.

"It is not to say that giving a statement from the dock is not good, but in some cases that I have handled, I have advised the second option. It depends on the circumstances," the lawyer said.

The lawyer, formerly a member of the Bar Council, explained that giving a statement from the witness stand exposes the evidence to the risk of being thrown out.

This happens when there are serious contradictions during the cross-examination. But if the accused testifies from the dock, the evidence cannot be challenged.

'Judge cannot interrupt proceeding'

"Assuming the accused was in police custody and has given a statement that may amount to a confession. Assuming he chooses to testify from the witness stand and say something completely different - that he is innocent.

"There is the risk of being challenged by way of impeachment. Assuming the prosecution succeeds in impeachment, his whole evidence in court becomes zero.

"If you have a statement from the dock, at least there is still something in the form of evidence," he said.

A drawback of this option is that the defence team cannot call the accused to the witness stand at a later stage.

Furthermore, the lawyer added, unlike testifying from the witness stand, the judge cannot interrupt or stop the accused from giving his statement, whether it is relevant or not.

"And the judge must consider everything that is said. Even if it is not relevant, he must consider it first and then decide on the value of the evidence given," he explained.

During Anwar's corruption trial back in 1998, he had given his statement from the witness stand but he was repeatedly interrupted by justice Augustine Paul with frequent use of the word "irrelevant".

A psychological, political maneuver

In his statement from the dock on Monday, Anwar claimed that he was a victim of a high-level conspiracy and lambasted the trial judge for being biased.

Another veteran criminal lawyer, who also declined to be named, said the defence team may be trying to give the trial as little credibility as possible.

"If they (the defence) believe that the trial is a charade, then they don't want to lend any credence to it and give a chance to the opposing side to belittle their story," he said.

Furthermore, giving a statement from the dock puts the judge on guard as he or she cannot rely on the prosecution's cross examination, the lawyer said.

"If one testifies from the witness stand, then the judge can just say that this is what the prosecution cross-examined and therefore I arrived at this conclusion.

"But now, the judge must sift through all of the statement. He cannot just disregard it," the lawyer said.

‘Statement from dock not hopeless'

A retired senior judge, who also declined to be named, said giving a statement from the dock does not necessarily mean that the defence is resigned to defeat.

"It is not a hopeless case, it's not right to say that it is a forgone conclusion," he said.

This was because the prosecution had a greater task of proving guilt in all certainty as compared with the defence, which only needs to raise doubts.

"The onus of the defence is not a heavy one, the onus on the prosecution is the heavy one. It must prove beyond reasonable doubt but for the defence, it is to create doubts," the retired judge said.

While conceding that a statement from the dock would lack credibility, he contended that it could be strengthened by the defence team during a later stage.

"The statement can be strengthened through other evidence provided by the defence, as well as through statements from the other witnesses," he added.


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